Minnesota woman to appeal $220,000 RIAA award
Jammie Thomas, the Minnesota woman who last week was ordered to pay the recording industry $222,000 for copyright violations related to sharing songs, has decided to appeal the verdict.
Jammie Thomas says she plans to appeal.
Thomas announced her decision Monday morning on cable news channel CNN and on her MySpace.com page.
Thomas said on her blog that she and her attorney, Brian Toder, plan to appeal based on the federal jury's finding that making songs available online violates copyright.
"This would stop the RIAA dead in their tracks," Thomas wrote on her blog. "Every single suit they have brought has been based on this making-available theory, and if we can win this appeal, they would actually have to prove a file was shared."
The jury issued a decision on Thursday that Thomas was guilty of violating copyright for 24 songs and required her to pay $9,250 for each. The jury never found that Thomas had downloaded any music but had infringed by making the music available for to others to download.
The case is the first time the RIAA has won a jury verdict against an accused file sharer.
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET.
the public libraries for all the "made available" books/cds/movies.
What's stopping me from entering, checking out a book/cd/movie
and photocopying/copying the entire thing?
Making something available on Kazaa shows intent to commit or be party to copyright violations. Since Kazaa is P2P, the "evidence" of any downloads would be stored or logged on person's hard drive.
IMHO, this is a point that will go nowhere.
Public libraries do not distribute unlimited copies of copyrighted works to as many folks that ask. They LEND out LICENSED copies of copyrighted works, one at a time, just as if you loaned a friend a CD. Ifa book doesn'tcome back, it doesn' go out again, the license is with the book.
You have just exemplified the poor argument against copyright enforcement, and knocked a few points off the anti-RIAA arguments. Not sure that's what you were going for.
It is not illegal to lend the cd itself to a friend. It is illegal to make a copy for them, or for your friend to make a copy.
Hypothetical: I'm sure the RIAA could win a judgement based on the "made available" argument if they could prove that I didn't adequately lock my house. Heck, the MPAA could join up with them since all my hundreds of DVDs were taken too.
Any judge who tells a jury that they can only decide the facts of the case is a LIAR.
If you think you disagree with me, or you don't know what I'm talking about; Read about how a jury can NULLIFY the enforcement of ANY law.
http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
http://www.fija.org/
http://en.wiktionary.org/wiki/jury_nullification
Cassette recorders enabled the copying of songs from either radio or another tape deck, and the VCR enabled saving programs and movies from television as well as many movie tapes that were not copy protected.
TiVO now enables the consumer to copy information to a hard drive which can be transferred to a DVD recorder, so how are these situations different, and where is/was the uproar?
If music is played over public airwaves then it should be coinsidered public domain and usable for the private enjoyment of the individual.
I may agree on the point of making a copy to share with others as being illegal, but I believe proving the intent is difficult.
Frankly, I believe it to be in the interest of the artist for a song to be shared in that it promotes the artist for free rather than requiring the costs associated with promotions.
And as for the punishment fitting the crime... puh-leez... $220k? Is someone trying to send a message? And if so and without selecting any particular genre, what of the messages that some artists send in their music?
As a disclaimer for those intent on ferreting out such major criminals, I do NOT download and save music, share music or copy music. I do not own an MP3 player. I do not copy computer software.
However, if these groups are going to tell me I can not save music played over the public airwaves then they can KMRA.
-Hecho en Texas
The difference is that the internet reaches so many places with little effort. If you copied tapes for people, you wouldn't tell a little blabber mouth kid. But the internet can act like a blabber mouth kid with certain monitoring software.
Also, the internet spreads news everywhere instantly. During the VCR and cassette era, you didn't hear about these lawsuits unless it caught the attention of a news agency. There was not an easy way to tell your story and let anyone in the world read it for free and instantly.
The courts found, however, that using these items were not infringement so long as the final use of the product was for the private use of the original owner.
Example. I can buy a CD or DVD and make as many copies for myself as I want. Copyright law allows for that. The instant I give one of those copies to a friend, even for free, I have violated copyright law. Plain and simple, that's the law.
this woman made those songs available for coping by placing them within the reach of her P2P. She banked on the supposed anonymity of the internet and she got burned for it. She allowed over 1,700 songs to be downloaded from her machine people! No one is so stupid that they wouldn't see something like that happening.
Again, the use of copyrighted materials for private home use is wholly within the confines of the law. Allowing that material, even mistakenly, is not. Had it been 15 - 20 songs and she said that she found the program on her machine and then erased it, fine. I could believe that.
But 1,700 songs downloaded from her machine? No way. Even if it was her kids who did it, it still doesn't matter. It's her house, her responsibility.
As for the "public domain" absurdity. When a song is played on a radio station you can bet dollars to donuts that there is a fair usage agreement in place.
Again, while it's perfectly legit for you to listen to music on a radio it is illegal for you to record said broadcast for anything other than private use. Hear a song you like on the radio and you want to record it? Sure, no problemo! Sell or give away that recording and you just broke the law.
As for intent, read the law. Intent does not need to be there. What, you've never heard of aiding and abetting?
So you believe that it's in the artist's interests to have their music stolen and passed around for free since it grants them great promotion. that's gotta be just about the dumbest thing I've ever heard. How are they supposed to make any money when everyone is tossing around their songs for free like so many groupies at a backstage party?
As for the punishment, this figure was not magically pulled out of a hat you realize. The law calls for specific punishments per occurrence. In this instance it was $9,250 for each violation, all 1,700 of them.
I'm not sure what the message in the music means so I'll ignore it.
As for your very last comment I feel that I ahve addressed it here in abundance but I will do so again.
Coping copyrighted music played over a public medium for private use? Good.
Selling or distributing the recording to other people? Bad.
That's the plain and simple of it. It's the law and we are a nation governed by the rule of law. If you (in the general sense) feel that you can simply violate those laws that you don't particularly like then please let me know where you live so I can come over and help myself to whatever possessions you have that I might like.
You know, I have never agreed with the folks at the Electronic Freedom Foundation, or other groups who seem dedicated to changing the long standing laws of copyright protection in this country. But I have noted one thing.
Their allies seem to include some of the brightest young minds in this country. From the law professors and students at Stanford, Berkeley, Harvard, Duke, and others ... to the lawyers at some of the most prestigious IP firms in the land ... to the engineers and scientists at some of our leading technology companies in this country ... the intellectual brainpower in this self-described "new wave" group has been impressive.
How this group could allow a strategic blunder like what we've just seen come out of Duluth is beyond me. Why these organizations didn't get involved, study the case thoroughly, and encourage Ms. Thomas, and her obviously inexperienced attorney, to surrender is truly phenomenal.
This is not the individual, the attorney, the forum, or the time I would want a precedent such as this established. What a strategic blunder!
Maybe these people are not nearly as smart as I gave them credit for. Apparently, they all sat back and naively thought (make that "wished") that Ms. Thomas would somehow end the RIAA onslaught forever.
Don't get me wrong. I applaud the decisions made by both the judge and jury in this precedent setting case. The anti-copyright crowd will suffer the consequences of this loss big time. Our economy will be strengthened. And these decisions will do more to help curtail widespread Internet Piracy than all the politicians, copyright industry executives, and lobbyists in this entire country put together.
I thought good lawyers advised their clients of the downside of their attempts to "change the law of the land" and could be sanctioned if they chose to pursue only "the big payday" or their personal "15 minutes of fame" instead. Read the copyright laws. Displaying and downloading copyright-protected works owned by others without their permission is illegal. It has both civil and criminal consequences. And, as in the case of Ms. Thomas in Duluth, they can be severe. She will have to pay back nearly $500,000 by having her pay check garnished for the rest of her life.
But she doesn't get any sympathy from me. If she had taken this many copyrighted songs out of Best Buy or Wal-Mart, she'd be in jail right now. And owe back a like amount of money as well. None of us - right or left - want to live in a lawless society. It's interesting to debate legal principles and consequences, but fearing to go outside for a cup of coffee or a loaf of bread is not something we have had any experience with in this country at all. Thank goodness!
And if you don't think organized white collar crime families are behind much of this Internet piracy epidemic, you'd better think again.
COUNTERPOINT:
Here is the one issue I have discussed with my 20-year-old son and I do have "conflicts" with. Google infringes more legitimate copyrights every single day than Ms. Thomas could do in a lifetime. Do we now have a country that has completely different standards for the billionaires than we do for the normal working folks? If so, I sure hope this is short-lived as well. I think I'd rather give up the coffee and the bread than have to worry about Google stealing from me every single day.
What's your opinion?
George P. Riddick, III
Chairman/CEO
Imageline, Inc.
griddick@imageline2.com
They are trying to stop corporations from further perverting the original intent of copyrights which was to encourage creativity and also built a robust public domain.
The only case is the loser in the RIAA and they deserve it.
According to www.techweb.com, a peer-to-peer network is a network of computers configured to allow certain files and folders to be shared with everyone or with selected users using the Internet as the world's largest file sharing network. Originally for music files, and subsequently for videos, this type of sharing was popularized by the famous Napster service as well as Gnutella (www.gnutella.com), Grokster (www.grokster.com), KaZaA (www.kazaa.com), Limewire (which I used to use) and others. Users upload copyrighted songs to a central server, a group of servers or to selected user computers, and people download the files that are available. Almost every song ever recorded has been uploaded to some music sharing venue.
In 2003, Napster was resurrected into a legitimate service competing with other online music stores such as iTunes (www.itunes.com) and Yahoo! Music Jukebox (formerly MusicMatch) (www.musicmatch.com). Although Apple legally sold more than a billion songs from its iTunes music service in 2006, it was estimated that more than 15 billion copyrighted songs were illegally shared or downloaded from Web sites in that same year.
The RIAA has had limited success in shutting down these networks, so now they have turned their efforts against young mostly college students with limited funds in an effort to thwart their perceived loss of income, alledged sales of CD product. This was the same argument that was brought up when cassette tapes were introduced and the list goes on and on. Personally, when I downloaded songs from the Internet a few years ago, I made an amazing discovery. I found hundreds of musicians that I would have never heard of and music genres that I found I liked very much. I then searched for more of their works and actually ended up purchasing the product because I couldn't find enough of it on peer-to-peer networks. It was the same with pirated software that I used to download. I found out which programs were crap and which ones actually worked for me and then I would go purchase the software. Most companies have learned their lessons and now offer "trialware" which gives a person to try a product before actually buying it. George, I can't count the crap CD's I bought with only one good song on it and that really agitates me. It made me stop buying a lot of CD's before downloading from the Internet was available. Another thing that irks me to no end is buying software that doesn't work. I won't mention the name of the software, but I bought it and it never worked on my computers. I took it back and they installed it on their computer and it didn't work. Well, I never got my money back because they stated I had already opened the package! They thought it would work on their computer and when it failed they were just as surprised as I was and in the end, I got stiffed for about $60! Yes George, criminals come in all shades and colors. When I was a student I used pirated copies of Microsoft's Office software because it was almost a must and could I afford $600 for the package? NO! But now I am gainfully employed and buy nothing but Microsoft because I know the program so well. I guess what I'm saying is that sometimes, good comes out of chaos.
When I was younger and working as a mobile DJ at a variety of clubs, it was extremely difficult to get some of the music from legitimate sources that people in the clubs wanted to hear. I simply told the crowds that I was looking and would play it as soon as I could get my hands on it. Well, times have changed and sometimes I can't blame people for using the technology.
The real problem George is that people want to pay for the music, but they want to be able to use it the way they want, and I'm not talking about sharing the music online. For instance, I have purchased music online from a variety of sources. Some have DRM, a copy protection scheme that either allows you to burn the song to a CD for a limited amount of times. So what happens when you lose your CD or damage it and now you have a song that you can only listen to on your computer? George, that sucks! What happens if you have a hard disk go dead with your music on it? George, that sucks!
You know what else George? I served in Iraq for almost 2 years and the file sharing there was almost a necessity. There are just some things you couldn't get in the desert even though there is a base PX that sells CD's, but could you imagine the PX selling CD's that everyone likes? Impossible. So the troops seek out people who like the same music and share share share! Is that wrong?
George, I agree with your views on why some of the brightest young minds let the RIAA get away with this strategic victory, but I don't agree that 20-year-old Ms. Thomas is a thief or criminal or should be lumped in the group of white-collar criminals. She was probably just having fun, looking for entertainment and got caught is her main mistake. I really don't think that illegal downloading is the cause of the slump in sales of CD's. It's within the big corporate record companies pushing junk music that nobody wants to waste their money on. Most of the downloads online are music from the past when music was good stuff to listen to or new music that is difficult to find. But I bet you can find 50-Cents if you want to listen to violence and black-on-black killing gangster crap. But this is America, where CEO's determine what we listen to. I wish they would crack down on child pornography like the RIAA is cracking down on young people just wanting to listen to good music. Remember, there wouldn't be a John if there weren't prostitutes or is the other way around and who's guilty?
Courts should handle filesharing this way. Take the price of the CD that one of the songs was illegally downloaded and divide the price up for that CD by the number tracks it has, and that's how much the person should pay.
It makes no sense to treat mp3s like its the actual item when we are talking about something that's nothing but ones and zeros, '11110000' its not physical media. So for courts and RIAA lawyers to try to act like it is they ought to be ashamed.
They're lucky I'm not a jury person hearing this case, I'll go in favor of the defendant.
instead of loaning out books it made a perfect copy of each
book and gave the perfect copy to anyone who came in, then the
analogy would hold.
A library does not "make available" a book the same way a P2P
network "makes available" a file. A library buys one copy of a
book, and does not make copies of it; when a borrower has the
book, nobody else can use it, and when the borrower returns it,
the borrower no longer has it. Only that one copy exists among
all the library's patrons.
And yes, if a library invented a magic book-copying machine
and started handing out free copies of books, the library would
be breaking the law.
If the borrower of the book decides to take out his digital or high-end analog camera and takes photoshots of book page by page, then scans or transfers those photoshots to his computer and then links and converts them to pdf and uploads them, then my friend you have made an illegal copy. Sounds like a lot of work, but this is the same scenario when it comes to music on peer-to-peers, videos on youtube, and movies on BitTorrents.
magical CD- and DVD-copying machines (aka computers).
Something to ponder, by the way . . . The purpose of copyright
(according to the Constitution, from which Congress derives its
power to make copyright laws) is 'To promote the Progress of
Science and useful Arts [by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and
Discoveries]' (Article 1, Section 8).
The purpose of copyright is not the protection of corporate
profits, but the common good of promoting art.
If they catch you with 100 homemade copies of a CD in your car, they can assume you are planning to distribute them.
If they catch you with half a ton of marijuana in your car, they are going to assume you are planning to distribute it.
Let's say, for instance, that you have your music in a file folder that's two levels down in a certain directory. Now, let's say you want to make certain files in that directory shared, but configure the sharing in such a way as it shares all subfolders... and the next thing you know your music folder is out there, "made available" for others to search and download from.
I've said this before and I'll say it again. There are people out there who have made their entire C: Drive available and haven't got a clue what they did. Just go on kazaa and see if you can find the windows pinball game available to download, or free cell, or any given windows system file. Missing a certain DLL file? Try finding it on Kazaa. You never know.
Also remember that no one knows what really happened in court, except the people that were there. Media reports are usually inaccurate, or they leave out many details - I have had personal experience with this. It could be that EFF made an offer of support to this mother, and she rejected it - it could be that her lawyer advised her to settle prior to litigation just like thousands of others, that he told her they had a very weak case, and she ignored his advice and chose instead to keep fighting, with a sad result. I also have had personal experience with clients ignoring my advice, to their detriment.
Or, it could be that none of the parties you name in your post even knew she had received a demand letter from the RIAA (I only found out about her existence after the decision was in, and I read it in the paper) so how could all the "smart lawyers" you name have helped her, if they did not know about the lawsuit until it was over?
Based on the jury instructions I read in the paper that were given by the judge, the jury had no choice but to find her guilty. However, I did not see all the jury instructions - the paper never printed them all. She could appeal the jury instructions, or maybe there were other appealable errors made at trial. I notice from an article in the paper that several copyright lawyers have volunteered to defend her in the appeal, which shows that lawyers do get involved when they feel strongly about a cause. I also notice that according to this article, it appears that she continues to be represented by the same lawyer, so she must be happy with his services.
Like you, I also have no sympathy for copyright infringers, but I think the RIAA is making a huge mistake by suing their customers, and by not going after well organized pirates overseas that infringe millions of songs at a time.
From what I have read, it sounded more like this young lady was acting as a distributor, not simply as an individual who enjoyed her own music. At any rate, this message has to get out there. I think the cover-up may have gotten her as much as the original infringing activity.
Again, third hand, it also appears Ms. Thomas is thumbing her nose to the general rule of law in this kind of case. The Supreme Court has already ruled on similar activity, as I'm sure you know.
Like you, I'd like to see the large publicly funded piracy companies (like Google) go down so that we wouldn't even have to worry about some of these things. Until then, however, I would recommend that everyone be very careful about what they decide to download online.
Thanks for taking the time to comment.
George
came out and raised the cost a dollar, and would get eaten buy the player after about 25 plays. Along comes the Cassette which was great, I could record simulcast live events, most radio stations would have Sunday night where they would play six albums in their entirety and you could record these. The downside; the little pressure pad that held the tape to the play head would fall off after a while, the cost of Cassette albums was $5.99, Vinyl stayed at $4.99. You could also buy what where called Cut-Outs for $1.99 which where full albums that had either a hole in the packaging or the tip cut of the corner,
these were what you would call seconds. I have hundreds of vinyl, cassette and another hundred Reel to Reel albums that I bought during this period and have kept, I am glad I did. Along comes the CD this product was greeted with
consumer contempt, for one reason it jumped the price up to $9.99, another was the fact that it sounded tinny and flat, no real resonance to it. The marketing on them was that they would not scratch and skip like records and would last
forever(no one bought this BS either), sales where terrible, CD’s had less market share then Cassettes. So the record companies announced that they are phasing out vinyl, due to the high cost of production, while at the same time justifying the cost of CD’s due to higher production cost. There was huge resistance to this along with petitions to the record companies to just raise
the cost of the vinyl records to that of the CD’s. Makes sense so why didn’t
they do it? Well, you have to remember this is the same industry that had the Payola Scandal (Google it), was constantly investigated for Price Fixing, stole the artist rights to their own music. These guys had a plan. Did you know that the RIAA was a non-profit consumer group? I’m quoting this off of The Band, Stage Fright album; “This record has been engineered and manufactured in accordance with standards developed by the Recording Industry Association of America, a non-profit organization dedicated to the betterment of recorded music and literature” Follow me so far? ASCAP As found in the Wikipedia: “The American Society of Composers, Authors and Publishers (ASCAP) is a non-profit performing rights organization that protects its members' musical copyrights by
monitoring public performances of their music, whether via a broadcast or live performance, and compensating them accordingly”.Wow I thought RIAA was "Protecting" the artist with their Gestapo tactics, and isn't non-profit tax free, if you Google ASCAP you'll see the look shady too I’m a musician, I play guitar, back in the day I was damned good. I never had any interest of getting a band together and getting into the grind because I knew some bands that hit it big and got a contract, I made more money then they did with my day job. Even if
you got huge you damned near had to kill yourself to make a decent buck. and you had to give up all rights to your music that you wrote. I have absolutely no respect for the recording industry that cannibalizes all of it’s artist. If you compare them to the Movie industry whom pays it’s employees well and invests in it’s artist instead of ripping them off, you see what a bunch of
crooks these guys are and always have been. I hope the industry dies quickly!
The fact remains that, like it or live, it law states that allowing the transfer of copyrighted materials without the approval of the copyright holder is illegal.
That's it, end of story.
If you are one of those people who feel they can just ignore any laws that they don't like then please feel free to post your address in this thread.
I'll be sure to stop over at my leisure, enter your house and just help myself to whatever I happen to like.
sure, it's against the law but we can simply skip over those laws we don't like, right?
HELL NO!!!
Now suppose my friend owns the same CD, but doesn't know how to make a hard-disk version of it. It should be legal for me to make my digital version available to my friend for him to download. (If it isn't, then the law is really messed up.)
So this woman needs to convince a jury that she thought she was only sharing her digital versions with people who already owned non-digital versions. (It would help if Kazaa had boilerplate where people agree only to download stuff they already own.)
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by Thomas_Richard_and_Harold
December 1, 2008 10:46 PM PST
- Doesn't Jury Nullification still work?
-
Reply to this comment
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(49 Comments)Any judge who tells a jury that they can only decide the facts of the case is a LIAR.
If you think you disagree with me, or you don't know what I'm talking about; Read about how a jury can NULLIFY the enforcement of ANY law.
http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
http://en.wiktionary.org/wiki/jury_nullification